2003 Supreme(SC) 193

2003(2) Supreme 123
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
S.B. Sinha & A.R. Lakshmanan, JJ.
M/s. D.L.F. Qutab Enclave Complex Educational Charitable Trust -Appellants
versus
State of Haryana & Ors. -Respondents
Civil Appeal No. 4908 of 2002
With
Civil Appeals Nos. 4909, 4010 and 4911 of 2002
Decided on 17-2-2003
Counsel for the Parties :
For the Appearing Parties : M.L. Varma, Harish N. Salve, Parag P. Tripathi, Mahendra Anand, Sr. Advocates, Ms. B. Vijayalakshmi Menon, Ajay Goyal, Ms. Manjula Gupta, Priya Kumar, S.R. Setia, Satinder S. Gulati, Neeraj Kumar Jain, Sanjay Singh, Ms. Hemantika Wahi, Alamjit S. Nand, Vinay Garg and Sudarsh Menon, Advocates.

IMPORTANT POINT
High Court was wrong in its approach and thus its impugned judgment cannot be sustained on the interpretation of Section 3(3)(a)(iv) of the Haryana Development and Regulation of Urban Areas Act, 1975.

Headnote:Haryana Development and Regulation of Urban Areas Act, 1975-Section 3(3)(a)(iv)-Application of licence and grant thereof-Difference between expressions to construct at his own cost or get constructed by any other at its cost -High Court holding the effect thereof would be same whether correct? (No)-Whether regulation of user of land can be construed to be a limitation prohibiting transfer of land which does not affect its user? (No)-Whether by an executive action a right to transfer one s own property could be curtailed? (No)-Result-High Court s judgment cannot be sustained-Appeals allowed-(Constitution of India -Article 300A).

       Held : A regulatory act must be construed having regard to the purpose it seeks to achieve. State as a statutory authority cannot ask for something which is not contemplated under the Act. A statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land which does not affect its user. (Para 37)

       It is not in dispute that respondent Nos. 1 and 2 have sought to impose such a ban specifically by reason of the impugned circulars issued in the years 1994 and 1996, which in unmistakable terms go to show that even according to them such a bar did not exist prior thereto. It is accepted that even the concerned respondents had recognised at least three transfers. If transfer of the sites reserved for construction of school was prohibited under the statute, it is axiomatic that in absence of any provision contained therein, the respondent could not exercise any power of regularizing such transaction. A transfer prohibited by a statute would be illegal and not irregular. Once it is held that such transfer would only be irregular which can be cured, it would necessarily mean that there was no absolute statutory bar in relation thereto. The building plans which were submitted on various days in 1992 and onwards had been accepted and sanctioned. If it be held that such transfers by the DLF Qutab were illegal, there was no occasion for the respondents No. 1 and 2 herein to pass the building plans keeping in view of the fact that transferee thereof did not acquire any title whatsoever. Such a right of transfer to third parties to raise construction having been accepted by the respondents No. 1 and 2 prior to 1994, it does not now lie in their mouth to contend that there existed a statutory bar. The primal question is as to whether by reason of an executive flat, a right to transfer one s own property could be curtailed ? The answer to the said question must be rendered in the negative. (Para 39)

       The High Court in our opinion, committed a manifest error in holding that despite the fact that the statute uses two different expressions as regards cost to be incurred for construction of schools, hospitals and community centres etc. the effect thereof would be the same. In case of licensee the words used are at his own cost whereas in respect of the others, the words used are at its cost . When different terminologies are used by the legislature it must be presumed that the same had been done consciously with a view to convey different meanings. Had the intention of the legislature been, as has been held by the High Court, that the cost for such a construction has to be borne by the licensee irrespective of the fact as to whether it undertakes such constructions itself or get them constructed by its contractors, there was absolutely no reason as to why clearer terms could not be used by the legislature. The words at his own cost refer to the licensee, whereas in the case of his nominee being either an institution or a person, as the case may be, the words at its cost have been used. The expression "at his own cost" and "at its cost" must be held to have separate and distinct meaning. They are not meant to aim at the same person. (Para 42)

       It may be that the agreement is between DLF and the respondent No. 2 but the same would not mean that the transferees from the DLF would not be bound by the terms and conditions of the licence as the statutory obligations of the licensee would percolate down to its transferees as they would be claiming interest under the licensee. In terms of the provisions of the said Act, Rules and the condition of licence, the Director Town and Country Planning as also the State of Haryana would be entitled to exercise control in terms of the statutory provisions over the subsequent transferees. Creation of third party or fourth party interest, it is axiomatic, would not by itself take away the right of control of the State and other regulatory measures which can be taken under the statute. In other words, the liability of the colonizer in the matter of construction of schools, hospitals etc. would continue in the event he or his transferees fail to comply the conditions of licence and he would be subjected to the consequences laid down therefor in Section 10 of the said Act. The Government in other words would continue to regulate the user for which the site had been earmarked and upon failure of the licensee or his transferees to comply with such statutory obligation, the Government would be entitled to take over such land. (Paras 44, 45 and 46)

       The High Court in our opinion, therefore, adopted a wrong approach. (Para 50)

       Sub-clauses (iii) and (iv) of Clause (a) of sub-section (3) of Section 3 of the said Act, thus, aim at different purposes. (Para 51)

       Ownership of land jurisprudentially involves a bundle of rights. One of such rights is the right to transfer. Such a right, being incidental to the right of ownership; having regard to Article 300A of the Constitution of India, cannot be taken away save by authority of law. (Para 53)

       The question which now arises for consideration is as to whether clause (t) of the licence agreement can be read as a restriction of the right to transfer the community sites. Clause (t) of the licence agreement reads as under:

       (a) That the owner shall drive maximum net profit @ 15 of the total cost of development of a colony after making provisions of statutory taxes. In case the net profit exceeds the 15 after completion of the project period, surplus amount shall either be deposited within two months in the State Government Treasury by the owner or he shall spend this money on further amenities/facilities in his colony for the benefit of the residents therein."

       The cap on profit, in our opinion, is irrelevant for the purpose of construction as regards the right of colonizer to transfer the land. Clause (t) of the Licence, in other words, cannot be construed to put in an implied limitation of the owner of the land to transfer its land. It is for the State of Haryana to invoke the said clause if and when any occasion arises therefor. Furthermore, having regard to the fact that the DLF had made its intention to transfer the lands known through advertisements in the widely circulated newspapers; offerees must be held to have exercised their due diligence at the time of acquisition of interest in the plots and in that view of the matter such interest cannot be put in jeopardy unless it is found out without any difficulty whatsoever that the colonizer had no right to transfer the said land and the effect of such transfer would lead to illegality. The fourth parties are bona fide transferees for value and thus their right of claiming interest cannot be jeopardized by reason of executive instructions or otherwise particularly in absence of any pleadings by the respondents No. 1 and 2 to the effect that fraud has been practised by the colonizer or the parties colluded with one another to achieve an illegal purpose. For the reasons aforementioned the impugned judgment cannot be sustained which is set aside accordingly. Before parting, however, we may observe that in the event, it is found that the colonizer or the transferees had failed to discharge their obligations in terms of the said Act, Rules and conditions of licence, it would be open to the prescribed authorities to take such action against them as is permissible in law. For the forgoing reasons, the appeals are allowed but in the fact and circumstances of the case, there shall be no order as to costs. (Paras 63 to 68)